ALJDEC decisions subject to certification as final

2021A-05559-CHC-ROC · Registrar of Contractors · 2022-05-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michelle R. Aerni and

Karen Swanson,

COMPLAINANTS

EcoScape Constructors, LLC,

License No. ROC 296882,

RESPONDENT

No. 2021A-05559-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: April 26, 2022

APPEARANCES: Complainants Michelle Aerni and Karen Swanson appeared on their own behalf. Amber Brooks and Philip Brooks appeared on behalf of Respondent EcoScape Constructors, LLC. Arizona Registrar of Contractors Investigator David Fagerburg appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

EcoScape Constructors, LLC (“Respondent”) is the holder of License No. 296882 issued by the Arizona Registrar of Contractors (“Registrar”). Philip Brooks is Respondent’s Qualifying Party and Member. Amber Brooks is a Member of Respondent.

On or about October 14, 2020, Michelle Aerni and Karen Swanson (“Complainants”) contracted with Respondent for the installation of 1,243 square feet of travertine patio, the installation of 1,526 square feet of turf, and 235 linear feet of travertine curbing around the turf. The parties subsequently verbally agreed to change the turf to grass. The contract price was $26,984.00. Complainants paid Respondent $9,000.00 toward this contract amount on December 7, 2020.

On December 5, 2020, Complainants contracted with Respondent for Respondent to install 2,350 square feet of paver driveway and driveway extensions. The contract price was $25,955.40. Complainants paid Respondent $8,000.00 on December 31, 2020, and $8,652.00 on March 8, 2021, for a total of $16,652.00 toward this contract.

On or about November 1, 2021, the Registrar received a Complaint against Respondent from Complainants alleging abandonment and poor work with respect to Respondent’s scopes of work.

The Registrar assigned the Complaint to Investigator David Fagerburg. After a January 11, 2022 jobsite inspection, Investigator Fagerburg issued a January 20, 2022 Written Directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify

the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on Wednesday February 9, 2022.

You are directed to remedy the following violations by the appropriate means:

Compliant Item 1: leveling out all of the travertine 2) fixing the rocking of the individual travertine pieces 3) fix the 'toe-kickers' on the north side of the pool and 4) complete the sanding process so that it is to industry standards.

Investigator’s Observation: The respondent is to correct the Travertine pavers that are loose and rocking, the pavers with lippage throughout the patio and pool deck without polymeric sand, complete the paver project per contract and complete the upper grass area per the agreed verbal change order.

Compliant Item 2: Delivery of the cement pavers that were supposed to be ordered for the circle drive. If he cannot obtain the pavers, he needs to return the full sum of money for the circle drive, amounting to $16,652.00.

Investigator’s Observation: The respondent is to complete the driveway paver and driveway extension project per contract.

All errors in original.

Also on January 20, 2022, Investigator Fagerburg issued a Warning Letter to Respondent as it appeared to Investigator Fagerburg that Respondent’s contract documents did not contain all nine elements required by the Registrar.

After the issuance of the Written Directive and the expiration of the time period in which to perform corrective work, Investigator Fagerburg contacted Complainants and was informed that Respondent performed some work, however had not performed all work as directed.

On February 14, 2022, Investigator Fagerburg conducted a compliance inspection. Investigator Fagerburg’s Compliance Jobsite General Notes state the following:

Compliance Findings:

Investigator’s Observation: The respondent is not in compliance with the directive.

Investigator’s Observation: The respondent made no attempt to comply with this directive item.

All errors in original.

Thereafter, Investigator Fagerburg forwarded the matter to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), A.R.S. § 32-1154(A)(12), specifically, A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(22).

Investigator Fagerburg conducted a prehearing inspection on April 25, 2022, and found that Respondent had not performed any further work.

Investigator David Fagerburg’s Testimony

Investigator Fagerburg testified consistently with his findings contained in his jobsite inspection notes, the Written Directive, compliance inspection notes, and the photographs taken in conjunction therewith. Investigator Fagerburg referenced his jobsite inspection notes that state the following in pertinent part:

At this jobsite investigation the complainant showed me areas throughout the Travertine pool decking and patio with areas of lippage and Travertine pavers that are not set in polymeric sand that rock back and forth when standing on them. See P (3) thru P (11). The respondent stated that he did not install all the travertine pavers and that the pavers with polymeric sand were installed by another contractor. The respondent acknowledged that there are pavers he installed that rock back and forth, have lippage and there is no polymeric sand between the pavers. During this jobsite investigation both parties agree that after the contract was signed for the patio hardscape and synthetic turf a verbal agreement was made to revise the upper area from synthetic turf to real grass. During this jobsite investigation in the backyard I observed the upper grass area with sprinklers installed. The respondent acknowledged that he installed he sprinkler system in preparation for real grass that is not installed. The respondent is to correct the Travertine pavers that are loose and rocking, the pavers with lippage throughout the patio and pool deck without polymeric sand, complete the paver project per contract and complete the upper grass area per the agreed verbal change order.

. . . .

At this jobsite investigation I observed an area at the front of the home with a rough excavation to create a circular driveway with no pavers installed. See P (12) thru P (16). The respondent stated that the driveway pavers have been purchased and are ready to be delivered and installed. The respondent is to complete the driveway paver and driveway extension project per contract.

All errors in original.

Investigator Fagerburg testified regarding the photographs that he took regarding the workmanship deficiencies, including excessive lippage. Investigator Fagerburg testified that Respondent did not dispute the verbal change order converting the turf to grass, or that some of the pavers Respondent installed rock back and forth, have lippage, and there is no polymeric sand between the pavers. Investigator Fagerburg testified that the parties agreed upon the areas of the patio on which Respondent performed its work, as another contractor was subsequently hired to work on portions of the patio. Consequently, there was no dispute as to Respondent’s work versus another contractor’s work. Investigator Fagerburg testified that there was water “pooling” and “puddling” in the area of travertine that was installed by Respondent.

Investigator Fagerburg testified that he conducted a prehearing inspection on April 25, 2022, and that Complainants had hired another contractor to re-install the sprinkler system because they were having to water the grass by hand. Investigator Fagerburg testified that no other changes had been made.

Regarding Respondent’s contract documents, Investigator Fagerburg testified that Respondent’s mailing address and the estimated completion date for the project were missing from the documents, and therefore, he issued a Warning Letter to Respondent.

Michelle Aerni’s Testimony

Dr. Aerni testified regarding the history of the project and how she came to know Respondent’s owners, Philip and Amber Brooks. Dr. Aerni further testified that in addition to the payments made by Complainants toward the two written contracts, there was a third, verbal contract entered into between the parties that called for the carve-out of the circular driveway. Respondent performed this work and was paid the agreed upon price of $3,500.00, and Complainants gave Respondent an additional $500.00 as a “tip,” for a total payment of $4,000.00 for the carve-out of the circular driveway.

Dr. Aerni testified that Respondent had promised to deliver and stage the pavers for the driveway on multiple dates in September and October 2021, and notwithstanding having paid $16,652.00 for the pavers and notwithstanding the Written Directive, Respondent still has not delivered the pavers for the driveway.

Regarding the contract for the travertine patio, Dr. Aerni testified that she was repeatedly told by Mr. Brooks that Respondent ordered the travertine, however, Respondent would not produce a receipt for the purchase and Respondent would not perform work on the patio. Complainants eventually hired another contractor to install part of the travertine patio with materials the other contractor was able to procure. Dr. Aerni offered to release Respondent from the contract for the patio because she believed it would be difficult for Respondent to match the travertine and the other contractor was willing to install the entire patio. Respondent declined to be released from the contract, and the installation by Respondent abutting the travertine installed by the other contractor was “wavy” and “shoddy.” Dr. Aerni testified that Respondent’s poor work has resulted in puddling on the patio. Dr. Aerni referenced several photographs depicting Respondent’s work.

Dr. Aerni testified that the parties verbally agreed to the installation of sod rather than turf, however, Respondent did not remove the old grass and installed new sod over the old grass, leaving it “lumpy” and “bumpy.” Further, Respondent did not leave Complainants with a fully functioning irrigation system, and to prevent the grass from dying, Complainants had to water it by hand.

Amber Brooks’ Testimony

Ms. Brooks testified regarding Mr. Brooks’ qualifications and credentials. Ms. Brooks blamed the delay in the installation of the travertine patio on delays in the pool construction. Ms. Brooks testified that in September 2020, Complainants told Respondent that the pool would be completed in February or March 2021, however, it was not completed until September 2021. Ms. Brooks testified that Respondent began the installation of the travertine patio on July 14, 2021, but could not complete the work until the pool was completed in September 2021. Ms. Brooks blamed some of the issues with the installation on the fact that Respondent “had to work off of another contractor’s work.” Ms. Brooks acknowledged that Respondent could have completed the installation of the travertine on the lower patio, but did not do so.

Ms. Brooks testified that Respondent would not install a custom driveway while other contractors were working at the property out of concern that the driveway would be damaged. However, the pool was completed in September 2021. When questioned as to why Respondent did not install the driveway after the pool was completed, Ms. Brooks testified that Complainants had not paid Respondent the second payment for the patio installation, and therefore, Respondent did not believe that Complainants would pay for the driveway installation. Ms. Brooks further testified that Respondent did not perform any further work after the completion of the pool because of Complainants’ “threat” of filing a complaint with the Registrar. However, Complainants did not file the instant Complaint until November 1, 2021, and the pool was admittedly completed by September 17, 2021. Therefore, Respondent did not perform any work during that six week timeframe.

Ms. Brooks testified that Respondent complied with the Written Directive, and that Investigator Fagerburg’s measurements of the gaps and lippage were incorrect because “you can’t measure with a card.” However, Ms. Brooks did not seem to realize that the “card” Investigator Fagerburg utilized to measure was an actual measurement tool approved and utilized by the Registrar. Respondent did not begin the corrective work pursuant to the Written Directive until two days prior to the expiration of the Written Directive because Respondent “did not think it would take that long.” Ms. Brooks asserted that the patio paver installation was completed to industry standards.

Philip Brooks’ Testimony

Mr. Brooks testified that he takes pride in his work and that he is “sorry things got this way.” Mr. Brooks asserted that Respondent has never had a complaint filed against its license, and he believes this “got personal and that is why we’re here.”

Mr. Brooks testified that he used a laser and level and “crawled around on his hands and knees” and “did not leave anything that is not to code.” Mr. Brooks explained that because travertine “is a natural stone product, there will be gaps.” Regarding the pooling and puddling, Mr. Brooks testified that he “tried to make the grade perfect.”

Administrative notice is taken of Respondent’s prior License record on April 28, 2022. Such prior License record reflects that Respondent’s License No. 296882 was first issued on April 8, 2015, and is active. Such prior License record also reflects that there is only the instant open complaint, one resolved/settled complaint, and no discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainants bear the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

In this case, Investigator Fagerburg found that Respondent’s work was not in conformity with the Registrar’s standards. Investigator Fagerburg determined the existence of workmanship issues concerning the work that was performed by Respondent. Respondent also failed to complete its scope of work pursuant to its contracts. None of the contracts’ specifications were completed and the work that was completed was deficient. Therefore, Complainants established that Respondent did not complete the projects in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).

The evidence established that Respondent’s mailing address and the estimated completion date for the project were missing from Respondent’s contract documents. Therefore, Complainants established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence, including Respondent’s admission, established that Respondent did not complete the required corrective work following the Written Directive being issued. Ms. Brooks testified that Respondent did not complete the driveway due to Respondent’s concern that Complainants had not paid sufficient monies toward the patio contract. Respondent’s argument that it did not comply with the Written Directive out of concern that Complainants would not pay for the work, is not persuasive as Complainants had already paid Respondent a total of $25,652.00 toward the two contracts, and an additional $4,000.00 for the carve-out of the driveway. The Administrative Law Judge concludes based on the evidence of record that valid justification did not exist for Respondent’s failure to comply with the Written Directive. Therefore, Complainants established that Respondent failed to take appropriate corrective action following a Written Directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 296882 for a period of seven (7) days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty (30) days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine (9) terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty (30) days, its contractor’s license shall be suspended until it demonstrates that it has done so.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.

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-137160-45720000Done this day, May 11, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000By Miranda Alvarez

Legal Secretary